Can the ICC Deter Mass Atrocities?

LOS ANGELES, CA, October 6, 2011—When dictators are suspected of perpetrating appalling atrocities upon their people, it seems natural to want to arrest and convict them. But could that actually make bad situations worse? Some argue, for example, that the International Criminal Court’s arrest warrants against Muammar al Quaddafi and his sons complicated any possible diplomatic solution and prolonged the war in Libya.

Can the International Criminal Court (ICC) help prevent mass atrocities? World renowned experts are debating this fundamental issue on an unusual Internet Forum (uclaforum.com) created in partnership with the ICC’s Office of the Prosecutor to debate complex issues faced by the Prosecutor’s Office in the course of its work.

Eminent international jurist Richard Goldstone is optimistic about the ICC’s potential deterrent effect. “Whilst investigation and prosecution of war criminals might conceivably make a peace negotiation more difficult that has not been the experience thus far,” Goldstone writes. He points to, among other examples, the positive effect that the indictment of Radovan Karadžić had in facilitating the Dayton peace accords, which in 1995 ended the war in the former Yugoslavia.

But noted American University Law Professor Ken Anderson is far more skeptical. In his opinion, posted on the Forum, the ICC lacks legitimacy due to the inherent absence of social order in conflict situations. He writes that the crime prevention model “assumes that criminals will cut and run to save themselves,” while underestimating the extent that these political actors see themselves as heroes rather than villains.

David Scheffer, former U.S. Ambassador for War Crimes, believes that the court could be more effective at deterrence if it didn’t have to rely on member states to arrest suspected war criminals. In his posting, Scheffer proposes, instead, that the international community create a standing police force for the ICC that would, in certain constrained circumstances, be able to go into a country and forcibly capture suspects and transport them to custody in The Hague.

University of Pennsylvania Law Professor William Burke-White, an expert on global governance who served in the Obama Administration, argues that the ICC should move from a purely judicial role to a hard-nosed diplomatic one. He writes that the current approach in which the court tries to appear apolitical is both impractical and naive.

Tomer Broude, a professor at the Hebrew University of Jerusalem, believes that the goal of the court should be the rendering of justice and accountability rather than deterrence. He believes that the work of the court will have a preventative impact, but argues that impact is mostly conjecture and is thus too speculative to have as an objective for the court.

The ICC was founded in 2002 as a permanent institution to prosecute the most “unimaginable atrocities that deeply shock the conscience of humanity.” The Rome Statute, the international treaty that created the court, states that one of its goals is to contribute to the prevention of war crimes and other atrocities.

“Deterrence is a central objective of domestic criminal law systems, but how can an international court deter mass atrocities?” asks UCLA School of Law Professor Richard Steinberg, Editor of the Forum and Director of the Sanela Diana Jenkins Human Rights Project. “What can be done to maximimize the ICC’s effectiveness at preventing crime? These are key questions for the ICC, the Prosecutor, and the international community-- and they need to be thoroughly debated.”

The Sanela Diana Jenkins Human Rights Project at UCLA School of Law was established in 2009 by a generous gift from Sanela Diana Jenkins (sdjfoundation.org) to advance the cause of human rights around the world.

“International courts are among the tools that the world can use to try to end mass violence against civilians,” said Jenkins, who was forced to flee her native Bosnia during the siege of Sarajevo. “I am hopeful that this Forum discussion will shed light on how to use rule of law to prevent future atrocities.”

About the ForumThe Human Rights & International Criminal Law Online Forum is unique because it was created by UCLA law students and formed as a partnership between the Office of the Prosecutor of the International Criminal Court and the Sanela Diana Jenkins Human Rights Project at UCLA School of Law. Open to the public at UCLAForum.com, the Forum allows individuals to debate and express their views on key issues of international criminal law faced by the Office of the Prosecutor in the course of its work at the International Criminal Court.

About UCLA School of LawFounded in 1949, UCLA School of Law is the youngest major law school in the nation and has established a tradition of innovation in its approach to teaching, research and scholarship. With approximately 100 faculty and 1,100 students, the school pioneered clinical teaching, is a leader in interdisciplinary research and training and is at the forefront of efforts to link research to its effects on society and the legal profession. For more information, visit www.law.ucla.edu.

About the Sanela Diana Jenkins Human Rights Project at UCLA School of LawThe Sanela Diana Jenkins Human Rights Project was established in 2009 by a gift from Sanela Diana Jenkins to advance the cause of human rights around the world. The Project engages in a range of activities, continuously identifying and pursuing the most promising opportunities for addressing human rights issues around the globe, while at the same time advancing understanding about human rights through interdisciplinary studies. The Project is run by the noted international relations expert and UCLA Law Professor Richard H. Steinberg.

About Sanela Diana JenkinsBusinesswoman and international human rights activist Sanela Diana Jenkins is the Chairman, CEO and founder of the U.S.- and U.K-based drinks company, Neuro (drinkneuro.com). She produced and published "Room 23," a best-selling photography book, and owns Melissa Odabash, a leading European swimwear business. Born in Sarajevo, Ms. Jenkins was forced to flee her home as a refugee during the siege of Sarajevo and lost many friends and family members during the war. Her Sanela Diana Jenkins Foundation is the largest privately funded Bosnian organization of its kind. In 2008, Ms. Jenkins won the Mostar Peace Connection Prize for her humanitarian work.